Local Government Bulletin

Political disagreements in a municipal council sometimes lead to stalemates on important matters such as the adoption of a municipal budget. Failure to adopt a budget by 30 June triggers the question: must the provincial government intervene, and, if so, how? This matter was the subject of a recent ruling of the Western Cape High Court. In this case, the High Court for the first time addressed the mandatory provisions of section 139(4) of the Constitution.

The ANC’s National General Council (NGC) is a forum at which the organisation’s progress and challenges are reviewed between national conferences. It is the highest body of the ANC, after the national congress, and convenes every five years. The third NGC, which sought to review the ANC’s performance against policies adopted by the Polokwane conference, was held in Durban in September. Its important outcome for the local governance sector is that there will soon be a summit on local government.

The Community Law Centre, in partnership with the German Agency for Technical Cooperation (GTZ) and SALGA, recently completed a research project on the phenomenon of rates withholding in five South African municipalities. ‘Rates withholding’ is the practice by ratepayers of withholding their property rates and, in some cases, fees for municipal services because they believe that municipalities are not delivering. We argue that this practice, though less visible than service delivery protests, is equally destructive.

Moves are afoot to professionalise the administrative arm of local government. First, the National Treasury has prescribed a competency framework for municipal
officials at senior and middle management levels. All senior and middle managers must have acquired the prescribed competencies by 1 January 2013, after which no candidate without the requisite competencies can be appointed. These regulations also make it necessary for current employees to attain these competencies by 31 December 2012.

In 2009, SALGA recommended to the Local Government Budget Forum that there should be a review of many aspects of fiscal policies in relation to municipal finances. This year SALGA proposed a comprehensive review of the local government fiscal framework (LGFF). While there have been some ad hoc policy changes over the past few years, many remain incomplete or unattended to. In SALGA’s view, the review of the LGFF should address the fundamental structural challenges, rather than introducing minor ad hoc adjustments, if it is to improve operational efficiency in the short and long term.

The research was undertaken by Hirsh Jain, a Harvard Law School visiting fellow at the Community Law Centre. This article summarises Jain’s findings relating to the frequency of protests, the incidence of violent protests, the impact of the 2008/09 economic recession, the geographical spread of protests per province, and the types of concerns that fuel protests.

The courts view the blacklisting of suppliers by the National Treasury in a very serious light and confirm that organs of state are allowed to cancel contracts concluded with suppliers who, when tendering for a contract, knowingly and wrongfully fail to disclose their inclusion on the National Treasury’s database as companies or persons prohibited from doing business with the public sector.

On 30 September 2010, the Community Law Centre launched a book entitled The future of local government in Zimbabwe: A policy dialogue in Harare, Zimbabwe.The launch was attended by the Deputy Minister for Local Government, Rural and Urban Development, Sesel Zvidzai, MP; the mayor of Harare, Muchadeyi Masunda; and other dignitaries. Zemelak Ayele summarises the book’s content.

The Legal Resources Centre (LRC), in conjunction with the Trust for Community Outreach and Education (TCOE), has produced a booklet on municipal commonages. As not much has been written on the subject in South Africa, it aims to educate the public on what municipal commonages are, their history and how to go about acquiring municipal commonage through state funds.

Section 62 of the Municipal Systems Act provides that any person ‘whose rights are affected by a decision taken by a political structure, political office bearer, councillor or staff memberof a municipality in terms of a power or duty delegated or sub-delegated by a delegating authority to the political structure, political office bearer, councillor or staff member, may appeal against that decision by giving written notice of the appeal and reasons to themunicipal manager within 21 days of the date of the notification of the decision.

The Centre for Policy Studies recently completed a study on the role of elected local councillors, particularly ward councillors, in service delivery in South Africa. Currently the public do not see local councillors playing an active role in service delivery. Much of the commentary on service delivery protests appears to focus on the role of municipal technocrats and administrators, as well as contracted service providers.

The City of Cape Town built unenclosed toilets in Makhaza, an informal settlement in Ward 95 of Khayelitsha. It did so on the understanding that the community would erect their own enclosures. This led to a public outcry, protests by the ANC Youth League (ANCYL), an investigation by the Human Rights Commission and even a court challenge. The media has dubbed the dispute ‘the toilet war.

Gender equity is a key objective of government policy, as seen in national government’s target of 50:50 gender representation in senior management by March 2009. However, recent research shows that this target is far from being met.

The Gauteng Development Tribunal was making land use management decisions and bypassing municipal land-use planning processes on the basis of the DFA. The SCA held that this violates municipalities’ right to administer ‘municipal planning’, listed in Schedule 4B of the Constitution as a municipal power. The SCA concluded that, when the Constitution provides that municipalities have authority over ‘municipal planning’, it includes land-use planning and management. Certain sections of the DFA were declared
unconstitutional.

In a recent Supreme Court of Appeal decision, CC Groenewald v M5 Developments, the court held that the unsuccessful bidders had a right, under section 62 of the Municipal Systems Act, to appeal against the municipality’s decision to award a tender. The court cautioned, however, that even though an appeal under this provision was a ‘wide appeal’, involving a rehearing of the issues, it did not allow the appeal authority to revisit all tenders and to award the tender to a bidder who had not appealed or, as in this case, whose appeal was out of time.

In City of Cape Town v Real People Housing (77/09) [2009] ZASCA 159 (30 November 2009), the Supreme Court of Appeal clarified the meaning of section 118(1) of the Municipal Systems Act. This provision gives municipalities the power to block the transfer of ownership of property in certain circumstances.

While a number of recent judgments have confirmed the duty of municipalities to ‘meaningfully engage’ with unlawful occupiers before seeking to evict them
from municipal land, they did not clearly establish the duties of municipalities to occupiers who face eviction from private land.

Property rates, as a form of tax imposed on the market value of land and buildings, are the key source of revenue for municipalities. The framework for the imposition of property rates is carefully regulated by the Municipal Property Rates Act (Act 6 of 2004) (MPRA), which provides municipalities with a measure of discretion in determining and levying property rates in a localised context. The imposition of property rates is, however, subject to national limits or maximums. This article discusses some recent developments with regard to these maximums (ratios), as well as the suggested amendments to the MPRA.

The recent strike by the SA Municipal Workers’ Union (SAMWU) centred on two key issues: inequity in wage curves (the income bands according to which workers are categorised) and the disciplinary bargaining collective agreement which governs the union.

On 22 April 2010, the Minister for CooperativeGovernance and Traditional Affairs, Sicelo Shiceka, presented Parliament with his department’s budget vote for the 2010/11 financial year. The significance of this particular budget vote is that it is the first for CoGTA since the launch of the Local Government Turnaround Strategy (LGTAS) in December 2009.

The Department of Cooperative Governance and Traditional Affairs (CoGTA) has published proposed amendments to the Municipal Systems Act which will do much to promote a more professional administration by way of better-qualified senior management, more impartiality and greater efficiency.

Like most post-colonial states in Africa, Kenya inherited its local government structure from the colonial government. The City of Nairobi was created by royal charter in 1950 and a local government ordinance was passed in 1960 to regulate local government. Local government in the colonial era was primarily meant to serve the growing white settler community in Nairobi and other areas.

After a decade of significant advancement in the provision of services to all communities, the Policy Review on Provincial and Local Government (COGTA 2009) and other research demonstrated that confidence in government at the local level has begun to decline sharply. Service delivery protests and dissatisfaction with local government have increased over the past few years, with growing evidence that faltering service provision, poor capacity and weak administration have driven many municipalities into ‘distress’ mode.

In response to widespread and ongoing service delivery protests across South Africa, Parliament has established a special committee to investigate and gather information about the causes of these protests. This ad hoc committee is tasked with conducting visits to urban and rural areas, holding public hearings and generally exercising coordinated oversight in respect of service delivery and, more particularly, the problems impeding service delivery.

In urban areas, the poor continue to struggle to access well-located land. Secondary residential property markets are also constrained from functioning effectively in black townships. Recent research supported by the South African Cities Network (SACN) and Urban Landmark hasinvestigated how municipal property rates policies are, or could be, used to promote access by the poor to urban land markets.

The report by COGTA on the state of South African local government clearly identifies interference by political parties as a cause of the ‘dysfunctionality’ and ‘instability’ of
municipalities. As the Local Government Turnaround Strategy states, political parties are ‘undermining the integrity and functioning of municipal councils through .... inappropriate interference in councils and administration.

As the local government turnaround strategy gains momentum (see page 7 and the editorial) and energy is focused on assessing the state of local government, the role of provincial oversight in respect of municipalities, including interventions, is critical. The Mnquma case revisited what is required of provinces in the context of an intervention.
The judgment, while contributing to the debate, may, however, have raised more questions than it provided answers.

The delivery of municipal services by external providers is strictly regulated. Not only do the general constitutional requirements for procurement apply, but other, more specific rules, also govern these relationships. The Municipal Systems Act, read with the Municipal Finance Management Act, for example, says that to make use of an external provider for the delivery of a municipal service, a municipality must use competitive bidding as a procurement method, comply with a process of community consultation and ensure that the entire process is fair, equitable, transparent, competitive and cost-effective.

Elsana Quarry, a mining company, was granted mining rights on a farm situated within the jurisdiction of the Swartland Municipality. The municipality requested the Court to prohibit Elsana from conducting the mining activities because the farm had not been rezoned by the municipality in terms of its zoning scheme. The Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) requires those who obtain mining rights to comply with any ‘relevant law’. The Swartland Municipality argued that this meant that Elsana should have applied for rezoning under both the Western Cape Land Use Planning Ordinance 15 of 1985 (LUPO) and the municipality’s zoning
scheme.

While some progress has been made towards facilitating women’s involvement in government structures and programme implementation, there is still a long way to go
before the goal of gender equality is achieved. Research conducted by Alison Todes, Pearl Sithole and Amanda Williamson investigated the extent to which women’s issues
have been incorporated at local government level, and concluded that municipalities tend to lag behind national policy and guidelines in giving priority to the goal of gender
equality. This article summarises their findings and suggests future directions.

The introduction of new rates tariffs by a municipality is rarely ever greeted without public debate – or, in some instances, even conflict. In this case, the Stellenbosch Ratepayers’ Association applied for the invalidation of a rate tariff which had been introduced by the municipality.